Preity Zinta hasn’t alleged sexual molestation: Lawyer

As police probe accusations made by actress Preity Zinta against former industrialist boyfriend Ness Wadia for use of force and foul language to shame her in public, her lawyer said that she has nowhere alleged ‘’sexual molestation".

TNN | Jun 17, 2014, 11.01 AM IST

MUMBAI: As police probe accusations made by actor Preity Zinta against former industrialist boyfriend Ness Wadia for use of force and foul language to shame her in public, her lawyer said that she has nowhere alleged ''sexual molestation".

Zinta's lawyer Hitesh Jain, speaking exclusively to TOI, said, "Although people are terming it as a case of molestation, in the FIR Preity has nowhere used the word molestation. Neither has she alleged sexual molestation or sexual assault on her." ''The FIR points to conduct in public, the use of force and the offensive language by Ness which made her feel ashamed as a woman before the public at large," he said to explain the invocation of section 354 of the Indian Penal Code which deals with "assault or criminal force to woman with intent to outrage her modesty".

The section is meant for cases of sexual assault, legal experts said. But the FIR, said sources, relied on a Supreme Court verdict which said the test should be whether the action "shocks the sense of decency of a woman."

The Marine Drive police invoked the non-bailable section 354 and three other bailable sections. Last year, the Centre had hiked the punishment under section 354 from two years to five years and introduced a minimum one year imprisonment. The section is non-bailable said senior criminal law lawyers Niteen Pradhan and Majeed Memon. It still remains non-compoundable which means, it cannot be settled between parties.

Zinta in her FIR said Ness was yelling at the team staff at Wankhede on May 30 when their IPL team, Kings XI Punjab was playing and she asked him to calm down and enjoy the match. She said, "But for no reason he started abusing and screaming at me, grabbed my arm and tried to pull me." She left for her seat as she ''did not want to create a scene" she said. But he came up to her and used "foul language in front of everyone... which was demeaning to my reputation and character," she alleged. She said his behavior left her feeling "unsafe and ashamed as a woman."

The Supreme Court in 2007 had clarified the meaning of the Victorian term still in use in the IPC — 'outraging a woman's modesty." It observed its lack of definition in the IPC and said, "The essence of a woman's modesty is her sex."

"Modesty is defined as the quality of being modest; and in relation to woman, womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct," said the SC adding, " It is ...sense of shame proceeding from instinctive aversion to impure or coarse suggestions."

The SC explained modesty as being an ''attribute of a woman's sex..of her being," said a lawyer adding actions displaying force such as pulling her hand and using derogatory terms against her as a woman may explain why the police applied section 354.

But not all lawyers are convinced that the police acted correctly. "The complaint of what happened on May 30 seems to have been overblown and unduly sensationalised. " He added, "It is an admitted position that Preity and Ness have not only been close to each other in the past but even now they are sharing a commercial and professional relationship in the cricket arena. It may be true that that he may have insisted on making her sit next to him by holding her hand and may have expressed his displeasure and may have used some harsh words but this by itself does not amount to a serious crime under section 354. CCTV footage and independent corroborative evidence must be there to prove the charge. Prima facie can't say it's an offence under section 354. In matters like these investigation must be done thoroughly to arrive at the truth."

Divorce lawyer Mrinalini Deshmukh also said, "Section 354 appears to be too harsh and inapplicable in this case based on her own statement in the FIR where she makes no reference to being harassed sexually as the section implies. Particularly since they shared a long term relationship." She added, "I am also shocked that the state women's commission which is an arm of the government jumped in immediately to question the police on why he had not been arrested just a day later without allowing t police to even probe ".

The criminal law requires police to give an accused a notice before arresting if the offence attracts less than seven years' imprisonment.

Sources close to the IPL said on that day Ness was upset on arriving after 8.30 pm to find his and his mother had no seat as the reserved seats were all occupied. That's when he shouted at the staff which Zinta refers to in the FIR without explaining the reason. Zinta has said Ness hbehaved badly with her in the past too and she had even sent him a personal email asking him to stop behaving in a manner that degraded her and put her to shame.

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